1. This Rule is directed against an order made by the Sub-Divisional Officer of Uluberia under the provisions of Section 494 (a) of theCode of Criminal Procedure.

2. It appears that on the application of the CourtSub-Inspector acting as Public Prosecutor the Magistrate accorded his consentto the withdrawal by the Public Prosecutor from the prosecution of threepersons, who under the provisions of Section 170 of the Code had been sent upfor trial on charges of rape and murder. For this order, according his sanctionto the withdrawal from the prosecution and to the subsequent or consequentialorder discharging the accused, the Magistrate gave no reasons. As from thepetition presented by the complainant it appeared that one of the persons puton their trial had made a confession implicating himself and the others, wewere of opinion that these orders should be examined by this Court.

2. The learned Counsel who has appeared to oppose this Ruleon behalf of the accused persons has contended that the consent given by theCourt under the provisions of Section 494, Criminal Procedure Code, is to beregarded as a mere ministerial or executive act for which it is not necessarythat the Magistrate should set out any reason; and in support of this view herefers us to a case decided by two learned Judges of the Madras High Court andreported as Sadayan, In re 4 Ind Cas. 1126 [LQ/MadHC/1908/169] : 6 M. L. T. 216 : 11 Cri. L. J.193. With all deference to the opinion there expressed by these learned Judgeswe are unable to assent to the view there taken, or to the view now urged uponus by the learned Counsel appearing in the present case. The only prosecutorwho may under the provisions of the Code of Criminal Procedure withdraw; from aprosecution without obtaining the consent of the Court and without givingreasons is the Advocate-General. No other Public Prosecutor is placed in thatprivileged position; and if the consent of the Court is to be regarded as aministerial act or merely an executive act, we do not understand why. it shouldhave been necessary for the Legislature to insert such a provision in the Sectionof the Code with which we are now dealing. It is clear to our minds that ineither withholding consent or in according consent the Court is acting in ajudicial capacity, and, for its orders as for every order judicially made itought to give and record its reasons. We are fortified in this view by aconsideration of the provisions of Sections 435 and 437 of the Code of CriminalProcedure. If the consent has been improperly accorded, it is clear that theconsequential discharge must also be looked upon as improper. For these reasonswe are of opinion that when a Court acting under Section 494 of the Code givesits consent to a withdrawal from a prosecution, it should record its reasons inorder that this Court may be in a position to say whether the discretion vestedin the Court has been properly exercised .

2. In the present case the Magistrate has now submitted tothis Court in his explanation the reasons which led him to make the order underconsideration. We are not satisfied that the first reason in which he refers tothe action of the Superintendent of Police is a good or sufficient reason. Weare not certain that the discretion vested in the investigating officer by theprovisions of Section 170, Criminal Procedure Code, can be controlled in the waysuggested by the Superintendent of Police; or so controlled after thediscretion has been exercised. But the other reasons that have been given bythe Magistrate appear to us to be of a more substantial character. We haveexamined for ourselves what was put forward to us as a confession implicatingthe confessing accused and his. co-accused; and when we read it we find thathe, the confessing accused, does not in fact implicate himself. In the courseof the argument before us, reference has been made to a confession said to havebeen made by the same accused in his village in the presence of a number ofvillagers. But it would appear that that confession was made while the accusedwas in the presence and practically in the custody of Police Officers, so thatalso becomes inadmissible.

3. Having now considered the reasons which led theMagistrate to consent to the withdrawal from the present prosecution, we are ofopinion that in the present case we ought not to interfere. But we desire topoint out that after all, the ultimate order is one only of discharge, and thatif and when evidence becomes available it will still be open to the Crown or tothe Court to re-open this prosecution

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Umesh Chandra Roy vs.Satis Chandra Roy and Ors. (29.06.1917 -CALHC)